Pierce v. Jackson , 21 Cal. 636 ( 1863 )

Cope, J. delivered the opinion of the Court

Field, C. J. concurring.

We do not see how the verdict in this case can be sustained. The question, as between the plaintiff and Jackson, is whether the latter is responsible for the grain stored in the warehouse of himself and McComb on account of the former. Jackson and McComb were partners, and the grain was stored in the regular course of their business, and receipts were given for it in their name. The charges of fraud and collusion on the part of the plaintiff and McComb do not, in our opinion, affect the question of the liability of Jackson. The fact that the grain was stored as stated is clearly proved, and the only way to meet it is to show that the liability incurred has been discharged. The onus rests upon the party asserting it, and the efforts made to discredit the testimony of McComb proves nothing upon the subject. The attempt at the trial was to show that Jackson had no connection with the transaction, but the evidence was obviously insufficient for that purpose. As against the fact that the grain was received and receipted for in the partnership name, the evidence relied on is entitled to no weight. It consists of accounts kept in the name of McComb alone, and letters addressed by him to the plaintiff, in all of which there is nothing repugnant to the position that Jackson was a party. It may be that there were transactions between the plaintiff and McComb to which he was not a party, but there is no evidence that the storage of the grain was other than a partnership matter. As to what was done with the grain, the evidence, so far as there is any evidence on the point, shows that it was sold, and the proceeds applied to the use of the partnership.

The objection that the suit was prematurely brought is -untenable ; and the objection to the competency of McComb as a witness is not available on this appeal. (McCloud v. O’Neal, 16 Cal. 392.)

Judgment reversed, and cause remanded for a new trial.

On application by respondent for a modification of the judgment—Per Cope, J. Field, C. J. concurring.

The petition in this case does not ask a rehearing, but a modification of the judgment, so as to allow the defendant, Jackson, to amend his answer in certain particulars. The Court below, independent of any direction on our part, has full power to allow the amendment, but there is no impropriety in giving the direction, and we shall therefore do so. The costs in the case will abide the event of a new trial.